B.C.'s Bountiful polygamy case: There are no sides, only layers

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Polygamy is a very complicated. Or is it? For many people it is very simple and those simple responses fall in these three categories:

1. Polygamy is bad for women and an example of extreme patriarchy;

2. There is nothing wrong with polygamy that isn't wrong with all relationships; and/or

3. Polygamy is a perfectly valid choice.

So why is it a criminal offence in Canada and why is there a very unusual Constitutional Reference case underway in Vancouver?

There is absolutely no clear political ideology that leads one to any of the above three opinions. As Jim Quail (a B.C. lawyer with solid leftist credentials) in his blog of Feb. 13 points out, there are progressive people and organizations on both sides of the Polygamy Reference Case. The fact that BC Civil Liberties and West Coast LEAF are on opposite sides of the question (which is: is the criminal law prohibiting polygamy constitutional) is not unusual. The civil liberties approach to such questions is often at odds with the systemic nature of feminist analysis; feminists are seeking equal protection of the law for women, civil liberty advocates are seeking the protection of individuals from arbitrary laws. While those two goals can dovetail, they often don't where family and privacy is at issue.

What is more bizarre is finding REAL Women and West Coast LEAF on the "same" side. At first blush it is just that -- blush-inducingly embarrassing. But one doesn't have to dig deep to find that REAL Women is there doing exactly what GLBT advocates, polyamourous relationship advocates, and civil libertarians fear -- arguing that traditional family is one man and one woman and the only way the world can function is if the law punishes those who fall out of that heterosexist norm. West Coast LEAF is arguing, among many things, that the law must protect women and children from sexual exploitation and if Criminal Code Section 293 can be interpreted to do that, then it is constitutional and should be upheld. Everyone involved in the case is clear that REAL Women and West Coast LEAF are not, in fact, on the same "side."

And that is because there simply are no sides to this issue... there are only layers. If one really needs to have sides, than it is an octagon at minimum.

Is this about religious freedom as many people claim? Should the members of the Bountiful FLDS community in B.C.'s Creston valley be left alone to "practice their religion"? Doesn't our Charter protect religious groups from persecution and isn't that value very important to uphold? Those outside of this fundamentalist Mormon sect who also practice polygamy, some Sikh and Muslim sects for example, are discriminated against if they choose to take more than one wife, are they not?

But note: I say if "they choose to take more than one wife." There is no religion in the world that allows a woman to choose to take more than one husband. And is religious freedom an unfettered one in Canada? "Honour" killings are not protected by religious freedom, neither is Sunday shopping. Canadian law has a long tradition of limiting religious freedom whether it a question of murder or going to the mall on Sunday.

But a question in the polygamy case is, does religious freedom give Canadians the freedom to enter into multiple-partner relationships, live, make plans, raise kids in the context of multiple sexual-partner relationships? Consider the possibility that the freedom to do this stems not from a fundamentalist religious ideology, from the freedom in our open Canadian society to form sexual relationships that are outside the stagnant fantasy world of REAL Women? Isn't that what progressive Canadians should be arguing for -- freedom from religious oppression rather than fretting about a theoretical application of a badly written law that is never applied anyway? Why are progressive Canadians arguing against the tyranny of the Iranian government but not the tyranny of the self-declared prophet of Bountiful who has over 20 women acting as his sexual servants?

Having said all of this, I agree with Jim Quail's point in his blog that Section 293 of the Criminal Code is broad, vague and that on its surface it captures many non-traditional relationships. It is vague enough to capture anyone standing in the room when a ceremony-like activity takes place in which a man cleaves himself to a second or 24th wife, including the 14 year old he is marrying.

But it is that very vagueness that has brought it before the courts at long last. The B.C. government of 1994 should have filed a reference question when they were presented with clear information about the reality of sexual exploitation in Bountiful at the time but chose not to act. Would the government have ignored a community of non-white polygamists, I have often wondered, for 20 years if presented with a report about sexual exploitation and questionable educational practices?

And there actually are 14 year olds marrying much older men in the FLDS community. The B.C. and federal governments' made the unprecedented decision to file the reference question at the Supreme Court of BC rather than a higher level of court so that there would be a full-blown trial. Their reasoning was to take the discussion out of the theoretical and academic and ground it squarely in sworn testimony about the practice of polygamy. And the case has succeeded in doing that in many ways.

A woman testified on behalf of the FLDS church that she was brought up from the U.S. to Canada as the fifth wife of a 40-something man. She was 14 and none of his other wives knew their husband was marrying again. She was testifying to say that she was ok with how her life has gone.

Evidence was presented late in the trial that told the story of 12-year-old girls and a 13 year old who were taken from Canada to the U.S. by their parents to be married upon arrival to leaders of the US FLDS community. This occurred in 2008 and information about it was shared with Canadian authorities by the Americans when they raided the compound in Texas. Other evidence was presented of other young women ages 16 to 18 being "escorted" over the border to their celestial marriage.

The oft-asked question by those opposing the criminalization of polygamy: why criminalize polygamy when we have exploitation and abuse laws? How is this different from the domestic violence that arises in monogamous relationships?

Domestic violence remains one of the most common criminal charges in Canada. No charges have ever been laid against men in Bountiful.

Trafficking charges have never been laid.

Child sexual abuse charges have never been laid.

In fact the community in Bountiful has flourished and more than doubled in size since 1994. Communities grow quickly when each man allowed to stay in the community impregnates many women over a one-year period, when women begin producing children when they are teenagers and have five to 10 children.

Yes, polygamy is complicated. But what seems to complicate it is the simplistic assumption that our laws are actively protecting women from the proscribed, limited and sexually controlled lifestyle that is the practice of polygamy. It is that assumption that makes it necessary to criminalize the overarching family structure, threatening the unique freedom we do have in Canada to enter into non-traditional family structures. West Coast LEAF is arguing to utilize the polygamy laws to protect women and girls given that other laws aren't being used.

Alison Brewin is author of numerous articles and reports, including in Rights-based legal aid: Rebuilding B.C.'s broken system. She currently serves as the executive director of the West Coast Women's Legal Education & Action Fund.

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